As filed with the Securities and Exchange Commission on
August 18, 2008
Registration No. 333-152913
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
PRE-EFFECTIVE
AMENDMENT NO. 1
TO
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
PINNACLE FINANCIAL PARTNERS,
INC.
(Exact name of registrant as
specified in its charter)
| Tennessee | 62-1812853 | |
|
(State or other jurisdiction
of incorporation or organization) |
(I.R.S. Employee Identification Number) |
The Commerce Center
211 Commerce Street
Suite 300
Nashville, Tennessee 37201
(615) 744-3700
(Address, including zip code,
and telephone number, including area code, of registrant’s
principal executive offices)
M. Terry Turner
President and Chief Executive Officer
Pinnacle Financial Partners, Inc.
211 Commerce Street
Suite 300
Nashville, Tennessee 37201
(615) 744-3700
(Name, address, including zip
code, and telephone number including area code, of agent for
service)
Copy to:
Bob F. Thompson
Bass, Berry & Sims PLC
315 Deaderick Street, Suite 2700
Nashville, Tennessee 37238
(615) 742-6200
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box: þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box: o
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box: o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
“large accelerated filer,” “accelerated
filer” and “smaller reporting company” in
Rule 12b-2 of the Exchange Act. (Check one):
|
Large accelerated
filer o
|
Accelerated filer þ |
Non-accelerated
filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
|
The
information in this prospectus is not complete and may be
changed. The selling shareholders named in this prospectus may
not sell the common stock until the registration statement filed
with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell the common stock and the
selling shareholders named in this prospectus are not soliciting
offers to buy the common stock in any jurisdiction where the
offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED
AUGUST 18, 2008
PROSPECTUS
PINNACLE FINANCIAL PARTNERS,
INC.
1,000,000 SHARES OF COMMON
STOCK
This prospectus relates to the resale from time to time of up to
1,000,000 shares of common stock of Pinnacle Financial
Partners, Inc. by the selling shareholders identified in this
prospectus. We are not selling any shares of our common stock
pursuant to this prospectus, and we will not receive any
proceeds from the sale of shares of our common stock offered by
this prospectus. We have agreed to pay certain expenses in
connection with the registration of the shares and to indemnify
the selling shareholders against certain liabilities.
The selling shareholders identified in this prospectus, or their
pledges, donees, transferees or other
successors-in-interest,
may offer the shares offered by this prospectus from time to
time through public or private transactions at prevailing market
prices, at prices related to prevailing market prices or at
privately negotiated prices.
Our common stock is traded on the NASDAQ Global Select Market
under the symbol “PNFP.” On August ,
2008, the closing sale price of the common stock on the NASDAQ
Global Select Market was $ per
share. You are urged to obtain current market quotations for the
common stock.
Investing in our common stock involves a high degree of
risks. See “Risk Factors” beginning on page 3 of
this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission or regulatory body has approved or
disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a
criminal offense.
The securities are not savings accounts, deposits or
obligations of any bank and are not insured by the FDIC or any
other governmental agency.
The date of this prospectus
is ,
2008.
TABLE OF
CONTENTS
|
PROSPECTUS SUMMARY
|
1 | |||
|
RISK FACTORS
|
3 | |||
|
FORWARD LOOKING STATEMENTS
|
9 | |||
|
USE OF PROCEEDS
|
9 | |||
|
SELLING SHAREHOLDERS
|
9 | |||
|
PLAN OF DISTRIBUTION
|
10 | |||
|
EXPERTS
|
12 | |||
|
LEGAL MATTERS
|
12 | |||
|
WHERE YOU CAN FIND MORE INFORMATION
|
12 | |||
|
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
|
13 |
You should rely only on the information contained or
incorporated by reference in this prospectus. Neither we nor the
selling shareholders have authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. The selling shareholders are not making an offer to sell
these securities in any jurisdiction where the offer or sale of
these securities is not permitted. You should assume that the
information appearing in this prospectus is accurate only as of
the date on the front cover of this prospectus and that any
information we have incorporated by reference is accurate only
as of the date of the document incorporated by reference. Our
business, financial condition, results of operations and
prospects may have changed since these dates.
PROSPECTUS
SUMMARY
This summary highlights important features of this offering
and the information included or incorporated by reference in
this prospectus. This summary does not contain all of the
information that you should consider before investing in our
common stock. You should read the entire prospectus carefully,
especially the risks of investing in our common stock discussed
under “Risk Factors.”
Unless this prospectus indicates otherwise or the context
otherwise requires, the terms “we,” “our,”
“us,” “Pinnacle Financial” or the
“company” as used in this prospectus refer to Pinnacle
Financial Partners, Inc. and its subsidiaries, including
Pinnacle National Bank, which we sometimes refer to as the bank,
our bank subsidiary or our bank. References to the
“offering” refer to the sale by the selling
shareholders of the shares of our common stock covered by this
prospectus.
Pinnacle
Financial Partners, Inc.
We are the second-largest bank holding company headquartered in
Tennessee, with $4.1 billion in assets as of June 30,
2008. Incorporated on February 28, 2000, Pinnacle Financial
is the parent and sole shareholder of Pinnacle National Bank. As
of June 30, 2008, we had total deposits of approximately
$3.15 billion and shareholders’ equity of
$481.7 million.
As a bank holding company, we are subject to regulation by the
Board of Governors of the Federal Reserve System (the
“Federal Reserve Board”). We are required to file
reports with the Federal Reserve Board and are subject to
regular examinations by that agency. Shares of our common stock
are traded on the NASDAQ Global Select Market under the trading
symbol “PNFP.”
Pinnacle
National Bank
Our bank, Pinnacle National Bank, is a national bank organized
under the laws of the United States. At June 30, 2008, the
bank was the second largest bank, based on asset size,
headquartered in Tennessee, with $4.1 billion in assets.
Pinnacle National Bank operates as an urban community bank
serving the
Nashville-Davidson-Murfreesboro-Franklin
MSA, which we refer to as the Nashville MSA, and the Knoxville
MSA. As an urban community bank, Pinnacle National Bank provides
the personalized service most often associated with small
community banks, while offering the sophisticated products and
services, such as investments and treasury management, often
associated with larger financial institutions. Pinnacle National
Bank’s principal business is to attract deposits from the
general public through its banking centers and use such deposits
to fund the origination of loans. Our bank also offers
investment, trust and insurance services. We contract with
Raymond James Financial Service, Inc., or RJFS, a registered
broker-dealer and investment adviser, to offer and sell various
securities and other financial products to the public from our
bank’s locations. Our bank offers, through RJFS, non-FDIC
insured investment products, such as mutual funds, variable
annuities, bonds and treasury securities, to assist our
client’s in achieving their financial objectives. Pinnacle
National Bank also maintains a trust department which provides
fiduciary and investment management services for individual and
institutional clients. Account types include personal trust,
endowments, foundations, individual retirement accounts,
pensions and custody. We have also established Pinnacle Advisory
Services, Inc., a registered investment advisor, to provide
investment advisory services to our clients. Additionally,
Miller, Loughry & Beach Insurance & Services,
Inc., a wholly-owned subsidiary of Pinnacle National Bank, acts
as insurance agent, particularly in the property and casualty
area, for our clients. We derive income principally from
interest charged on loans, and to a lesser extent, from fees
received in connection with the sale and servicing of loans and
deposit services, insurance commissions and interest earned and
gains realized on the sale of investments. The bank’s
principal expenses are interest expense on deposits and
borrowings, operating expenses, provisions for loan losses and
income tax expenses.
As of June 30, 2008, Pinnacle National Bank had 33 banking
offices located throughout the Nashville MSA and Knoxville MSAs
and employed approximately 704 full-time equivalent
employees.
Pinnacle National Bank’s deposits are insured by the
Federal Deposit Insurance Corporation (the “FDIC”) up
to applicable limits. Our competitors include larger,
multi-state banks, commercial banks, savings and loan
1
associations, consumer and commercial finance companies, credit
unions and other financial services companies.
Our bank is subject to comprehensive regulation, examination and
supervision by the Office of the Comptroller of the Currency.
Corporate
Information
Our principal executive offices are located at 211 Commerce
Center, Suite 300, Nashville, Tennessee 37201 and our
telephone number at these offices is
(615) 744-3700.
Our internet address is www.pnfp.com. Please note that our
website is provided as an inactive textual reference and the
information on our website is not incorporated by reference in
this prospectus.
The
Offering
|
Common stock offered by selling shareholders
|
1,000,000 shares | |
|
Common Stock to be outstanding after this offering
|
23,597,090 shares(1) | |
|
Use of proceeds
|
We will not receive any proceeds from the sale of shares in this offering. See “Use of Proceeds” on page 9 of this prospectus. | |
|
Risk Factors
|
See the “Risk Factors” section beginning on page 3 of this prospectus, as well as other cautionary statements throughout or incorporated by reference in this prospectus, before investing in shares of our common stock. | |
|
NASDAQ Global Select Market symbol
|
PNFP |
| (1) | Based on the number of shares outstanding as of July 31, 2008 and excludes shares issued upon exercise of stock options and stock appreciation rights outstanding as of the date hereof or stock options and stock appreciation rights issued after the date hereof. |
2
RISK
FACTORS
You should carefully consider the following risk factors and
all other information contained in this prospectus before
purchasing our common stock in this offering. Investing in our
common stock involves a high degree of risk. If any of the
following risks actually occurs, we may not be able to conduct
our business as currently planned and our financial condition or
operating results could be materially harmed, the trading price
of our common stock could decline and you could lose all or part
of your investment. This listing should not be considered as
all-inclusive.
We are
geographically concentrated in the Nashville, Tennessee MSA, and
changes in local economic conditions impact our
profitability.
We currently operate primarily in the Nashville, Tennessee MSA,
and a significant percentage of our loan, deposit and other
customers live or have operations in the Nashville MSA.
Accordingly, our success significantly depends upon the growth
in population, income levels, deposits and housing starts in the
Nashville MSA, along with the continued attraction of business
ventures to the area. Our profitability is impacted by the
changes in general economic conditions in this market.
Additionally, unfavorable local or national economic conditions,
including deterioration in the residential real estate market,
could reduce our growth rate, affect the ability of our
customers to repay their loans to us and generally affect our
financial condition and results of operations.
We are less able than a larger institution to spread the risks
of unfavorable local economic conditions across a large number
of diversified economies. Moreover, we cannot give any assurance
that we will benefit from any market growth or favorable
economic conditions in our primary market areas if they do occur.
We may
not be able to continue to expand into the Knoxville MSA in the
time frame and at the levels that we currently expect and our
projected expansion may continue to reduce our net income in
2008.
In order to continue our expansion into the Knoxville MSA, we
will be required to hire a significant number of new associates
and build out a branch network. We can not assure you that we
will be able to hire the number of experienced associates that
we need to successfully execute our strategy in the Knoxville
MSA, nor can we assure you that the associates we hire will be
able to successfully execute our growth strategy in that market.
Because we seek to hire experienced associates, the compensation
cost associated with these individuals may be higher than that
of other financial institutions of similar size in the market.
If we are unable to grow our loan portfolio at planned rates,
the increased compensation expense of these experienced
associates may negatively impact our results of operations.
Because there will be a period of time before we are able to
fully deploy our resources in the Knoxville MSA, our start up
costs, including the cost of our associates and our branch
expansion, will negatively impact our results of operations. In
addition, if we are not able to expand our branch footprint in
the Knoxville MSA in the time period that we have targeted, our
results of operations may be negatively impacted. Execution of
our growth plans in the Knoxville MSA also depends on continued
growth in the Knoxville economy, and unfavorable local or
national economic conditions, including deterioration in the
residential real estate market, could reduce our growth rate,
affect the ability of our customers to repay their obligations
to us and generally negatively affect our financial condition
and results of operations.
Our
continued growth may require the need for additional capital and
further regulatory approvals which, if not obtained, could
adversely impact our profitability and implementation of our
current business plan.
To continue to grow, we will need to provide sufficient capital
to Pinnacle National Bank through earnings generation,
additional equity or trust preferred offerings or borrowed funds
or any combination of these sources of funds. For certain
amounts or types of indebtedness, we may be required to obtain
certain regulatory approvals beforehand. Should our growth
exceed our expectations, we may need to raise additional capital
over our projected capital needs. However, our ability to raise
additional capital, if needed, will depend on conditions in the
capital markets at that time, which are outside our control, and
on our financial
3
performance. Accordingly, we cannot assure our ability to raise
additional capital if needed on terms acceptable to us. If we
cannot raise additional capital when needed, our ability to
further expand and grow our operations could be materially
impaired. Additionally, our current plan involves increasing our
branch network, which will require capital expenditures. Our
expansion efforts will likely also require certain regulatory
approvals. Should we not be able to obtain such approvals or
otherwise not be able to grow our asset base, our ability to
attain our long-term profitability goals will be more difficult.
We
have a concentration of credit exposure to borrowers in certain
industries and we also target small to medium-sized
businesses.
At June 30, 2008, we had significant credit exposures to
borrowers that are involved in leasing nonresidential buildings;
in leasing residential buildings; in subdivision development; in
the trucking industry; and new single family housing
construction. If any of these industries experience an economic
slowdown and, as a result, the borrowers in these industries are
unable to perform their obligations under their existing loan
agreements, our earnings could be negatively impacted, causing
the value of our common stock to decline.
Additionally, a substantial focus of our marketing and business
strategy is to serve small to medium-sized businesses in the
Nashville and Knoxville MSAs. As a result, a relatively high
percentage of our loan portfolio consists of commercial loans
primarily to small to medium-sized business. At June 30,
2008, our commercial and industrial loans accounted for
approximately 29% of our total loans. During periods of economic
weakness, small to medium-sized businesses may be impacted more
severely and more quickly than larger businesses. Consequently,
the ability of such businesses to repay their loans may
deteriorate, and in some cases this deterioration may occur
quickly, which would adversely impact, our results of operations
and financial condition.
With
our acquisitions of Cavalry and
Mid-America,
we significantly increased our real estate construction and
development loans, which have a greater credit risk than
residential mortgage loans.
As a result of the acquisitions of Cavalry and
Mid-America,
construction and development lending is a more significant
portion of our loan portfolio than it was prior to these
acquisitions. The percentage of construction and land
development loans in our bank subsidiary’s portfolio
increased to approximately 20.9% of total loans at June 30,
2008, from 19.4% at March 31, 2008 and 21.2% and 16.9% at
December 31, 2007 and 2006, respectively. This type of
lending is generally considered to have more complex credit
risks than traditional single-family residential lending because
the principal is concentrated in a limited number of loans with
repayment dependent on the successful operation of the related
real estate project. Consequently, these loans are more
sensitive to adverse conditions in the real estate market or the
general economy. These loans are generally less predictable and
more difficult to evaluate and monitor and collateral may be
difficult to dispose of in a market decline. Additionally,
Pinnacle National Bank may experience significant construction
loan losses because independent appraisers or project engineers
inaccurately estimate the cost and value of construction loan
projects. Also, in the event of a general economic downturn in
the construction industry, our results of operations may be
adversely impacted, and our net book value may be reduced.
We may
not be able to successfully integrate
Mid-America’s
operations with ours or realize the anticipated benefits of our
merger with
Mid-America.
The merger of
Mid-America
with and into Pinnacle Financial involved the combination of two
bank holding companies that previously have operated
independently and in the case of
Mid-America,
two separate bank subsidiaries that operate separate from one
another. A successful combination of the operations of the three
bank subsidiaries will depend substantially on our ability to
consolidate operations, systems and procedures and to eliminate
redundancies and costs. We may not be able to combine our
operations with the operations of
Mid-America
without encountering difficulties, such as:
| • | the loss of key employees and customers; | |
| • | the disruption of operations and business; |
4
| • | inability to maintain and increase competitive presence; | |
| • | loan and deposit attrition, customer loss and revenue loss; | |
| • | possible inconsistencies in standards, control procedures and policies | |
| • | unexpected problems with costs, operations, personnel, technology and credit; and/or | |
| • | problems with the assimilation of new operations, sites or personnel, which could divert resources from regular banking operations. |
Additionally, general market and economic conditions or
governmental actions affecting the financial industry generally
may inhibit our successful integration with
Mid-America.
Further, we entered into the merger agreement and consummated
the merger with the expectation that the merger will result in
various benefits including, among other things, benefits
relating to enhanced revenues, a strengthened market position
for the combined company, cross selling opportunities,
technology, cost savings and operating efficiencies. Achieving
the anticipated benefits of the merger is subject to a number of
uncertainties, including whether we integrate
Mid-America
and its bank subsidiaries in an efficient and effective manner,
and general competitive factors in the marketplace. Failure to
achieve these anticipated benefits could result in a reduction
in the price of our shares as well as in increased costs,
decreases in the amount of expected revenues and diversion of
management’s time and energy and could materially impact
our business, financial condition and operating results.
Finally, any cost savings that are realized may be offset by
losses in revenues or other charges to earnings.
We
have incurred significant costs integrating
Mid-America
and expect to incur additional costs during the remainder of
2008.
We have incurred significant costs associated with combining our
operations with those of
Mid-America
and expect to incur additional costs during the remainder of
2008 related to integration. Additional unanticipated costs may
be incurred in the integration of our business with the business
of
Mid-America.
Although we expect that the elimination of duplicative costs, as
well as the realization of other efficiencies related to the
integration of the businesses, may offset incremental
transaction and merger-related costs over time, this net benefit
may not be achieved in the near term, or at all.
If our
allowance for loan losses is not sufficient to cover actual loan
losses, our earnings will decrease.
If loan customers with significant loan balances fail to repay
their loans according to the terms of these loans, our earnings
would suffer. We make various assumptions and judgments about
the probable losses in our loan portfolio, including the
creditworthiness of our borrowers and the value of any
collateral securing the repayment of our loans. We maintain an
allowance for loan losses in an attempt to cover our estimate of
the probable losses in our loan portfolio. In determining the
size of this allowance, we rely on an analysis of our loan
portfolio based on volume and types of loans, internal loan
classifications, trends in classifications, volume and trends in
delinquencies, nonaccruals and charge-offs, national and local
economic conditions, industry and peer bank loan quality
indications, and other pertinent factors and information.
Because we are a relatively young organization, our allowance
estimation may be less reflective of our historical loss
experience than a more mature organization. If our assumptions
are inaccurate, our current allowance may not be sufficient to
cover potential loan losses, and additional provisions may be
necessary which would decrease our earnings.
In addition, federal and state regulators periodically review
our loan portfolio and may require us to increase our allowance
for loan losses or recognize loan charge-offs. Their conclusions
about the quality of our loan portfolio may be different than
ours. Any increase in our allowance for loan losses or loan
charge-offs as required by these regulatory agencies could have
a negative effect on our operating results.
5
Fluctuations
in interest rates could reduce our profitability.
The absolute level of interest rates as well as changes in
interest rates may affect our level of interest income, the
primary component of our gross revenue, as well as the level of
our interest expense. Interest rate fluctuations are caused by
many factors which, for the most part, are not under our direct
control. For example, national monetary policy plays a
significant role in the determination of interest rates.
Additionally, competitor pricing and the resulting negotiations
that occur with our customers also impact the rates we collect
on loans and the rates we pay on deposits.
As interest rates change, we expect that we will periodically
experience “gaps” in the interest rate sensitivities
of our assets and liabilities, meaning that either our
interest-bearing liabilities will be more sensitive to changes
in market interest rates than our interest-earning assets, or
vice versa. In either event, if market interest rates should
move contrary to our position, this “gap” may work
against us, and our earnings may be negatively affected.
Changes in the level of interest rates also may negatively
affect our ability to originate real estate loans, the value of
our assets and our ability to realize gains from the sale of our
assets, all of which ultimately affect our earnings. A decline
in the market value of our assets may limit our ability to
borrow additional funds. As a result, we could be required to
sell some of our loans and investments under adverse market
conditions, upon terms that are not favorable to us, in order to
maintain our liquidity. If those sales are made at prices lower
than the amortized costs of the investments, we will incur
losses.
National
or state legislation or regulation may increase our expenses and
reduce earnings.
Changes in tax law, federal legislation and regulation, such as
bankruptcy laws, deposit insurance, and capital requirements,
among others, can result in significant increases in our
expenses
and/or
chargeoffs, which may adversely affect our earnings. Changes in
state or federal tax laws or regulations can have a similar
impact. The Tennessee Commissioner of Revenue has proposed
changes in taxation of certain bank subsidiaries that would
increase our state taxes materially, and the likelihood of such
changes being adopted is currently uncertain.
Loss
of our senior executive officers or other key employees could
impair our relationship with our customers and adversely affect
our business.
We have assembled a senior management team which has a
substantial background and experience in banking and financial
services in the Nashville market. Loss of these key personnel
could negatively impact our earnings because of their skills,
customer relationships
and/or the
potential difficulty of promptly replacing them.
Competition
with other banking institutions could adversely affect our
profitability.
A number of banking institutions in the Nashville market have
higher lending limits, more banking offices, and a larger market
share of loans or deposits than we do. In addition, our asset
management division competes with numerous brokerage firms and
mutual fund companies which are also much larger. In some
respects, this may place these competitors in a competitive
advantage, although many of our customers have selected us
because of service quality concerns at the larger enterprises.
This competition may limit or reduce our profitability, reduce
our growth and adversely affect our results of operations and
financial condition.
We may
issue additional common stock or other equity securities in the
future which could dilute the ownership interest of existing
shareholders.
In order to maintain our capital at desired or
regulatory-required levels, we may be required to issue
additional shares of common stock, or securities convertible
into, exchangeable for or representing rights to acquire shares
of common stock. We may sell these shares at prices below the
current market price of shares, and the sale of these shares may
significantly dilute shareholder ownership. We could also issue
additional shares in connection with acquisitions of other
financial institutions.
6
Even
though our common stock is currently traded on the NASDAQ Stock
Market’s Global Select Market, it has less liquidity than
many other stocks quoted on a national securities
exchange.
The trading volume in our common stock on the NASDAQ Global
Select Market has been relatively low when compared with larger
companies listed on the NASDAQ Global Select Market or other
stock exchanges. Although we have experienced increased
liquidity in our stock, we cannot say with any certainty that a
more active and liquid trading market for our common stock will
continue to develop. Because of this, it may be more difficult
for shareholders to sell a substantial number of shares for the
same price at which shareholders could sell a smaller number of
shares.
We cannot predict the effect, if any, that future sales of our
common stock in the market, or the availability of shares of
common stock for sale in the market, will have on the market
price of our common stock. We can give no assurance that sales
of substantial amounts of common stock in the market, or the
potential for large amounts of sales in the market, would not
cause the price of our common stock to decline or impair our
future ability to raise capital through sales of our common
stock.
The market price of our common stock has fluctuated
significantly, and may fluctuate in the future. These
fluctuations may be unrelated to our performance. General market
or industry price declines or overall market volatility in the
future could adversely affect the price of our common stock, and
the current market price may not be indicative of future market
prices.
If a
change in control or change in management is delayed or
prevented, the market price of our common stock could be
negatively affected.
Provisions in our corporate documents, as well as certain
federal and state regulations, and agreements with members of
our senior management may make it difficult and expensive to
pursue a tender offer, change in control or takeover attempt
that our board of directors opposes. As a result, our
shareholders may not have an opportunity to participate in such
a transaction, and the trading price of our stock may not rise
to the level of other institutions that are more vulnerable to
hostile takeovers. Anti-takeover provisions contained in our
charter also will make it more difficult for an outside
shareholder to remove our current board of directors or
management.
Holders
of Pinnacle Financial’s bank indebtedness and junior
subordinated debentures and other subordinated debt have rights
that are senior to those of our common
shareholders.
We have supported our continued growth through the issuance of
trust preferred securities from special purpose trusts and
accompanying junior subordinated debentures. We also have
entered into a $25.0 million revolving line of credit and a
$15.0 million subordinated loan agreement with a regional
bank. At June 30, 2008, we had outstanding trust preferred
securities and accompanying junior subordinated debentures
totaling $82.5 million and borrowings of $18.0 million
under our revolving line of credit. Payments of the principal
and interest on the trust preferred securities of these trusts
are conditionally guaranteed by Pinnacle Financial. Further, the
accompanying junior subordinated debentures we issued to the
trusts are senior to our shares of common stock. As a result, we
must make payments on the junior subordinated debentures before
any dividends can be paid on our common stock and, in the event
of our bankruptcy, dissolution or liquidation, the holders of
the junior subordinated debentures must be satisfied before any
distributions can be made on our common stock. We have the right
to defer distributions on our junior subordinated debentures
(and the related trust preferred securities) for up to five
years, during which time no dividends may be paid on our common
stock. The rights of the lender that has extended the line of
credit to us and who has loaned us the $15 million of
subordinated debt are senior to those of holders of our common
stock.
The
amount of common stock owned by, and other compensation
arrangements with, our officers and directors may make it more
difficult to obtain shareholder approval of potential takeovers
that they oppose.
As of March 1, 2008, directors and executive officers
beneficially owned approximately 7.6% of our common stock.
Employment agreements with our senior management also provide
for significant payments
7
under certain circumstances following a change in control. These
compensation arrangements, together with the common stock,
option and warrant ownership of our board and management, could
make it difficult or expensive to obtain majority support for
shareholder proposals or potential acquisition proposals of us
that our directors and officers oppose.
Our
business is dependent on technology, and an inability to invest
in technological improvements may adversely affect our results
of operations and financial condition.
The financial services industry is undergoing rapid
technological changes with frequent introductions of new
technology-driven products and services. In addition to better
serving customers, the effective use of technology increases
efficiency and enables financial institutions to reduce costs.
We have made significant investments in data processing,
management information systems and internet banking
accessibility. Our future success will depend in part upon our
ability to create additional efficiencies in our operations
through the use of technology, particularly in light of our past
and projected growth strategy. Many of our competitors have
substantially greater resources to invest in technological
improvements. We cannot make assurances that our technological
improvements will increase our operational efficiency or that we
will be able to effectively implement new technology-driven
products and services or be successful in marketing these
products and services to our customers.
Our
internal control over financial reporting may have weaknesses or
inadequacies that may be material.
Section 404 of the Sarbanes-Oxley Act of 2002 requires us
to perform an evaluation of our internal control over financial
reporting and our auditor to attest to such evaluation on an
annual basis. Ongoing compliance with these requirements is
expected to be expensive and time-consuming and may negatively
impact our results of operations. Management concluded that our
internal control over financial reporting was effective at
December 31, 2007. While our management did not identify
any material weaknesses in our internal control over financial
reporting at December 31, 2007, we cannot make any
assurances that material weaknesses in our internal control over
financial reporting will not be identified in the future. If any
material weaknesses are identified in the future, we may be
required to make material changes in our internal control over
financial reporting which could negatively impact our results of
operations. In addition, if we cannot conclude that our internal
control over financial reporting is effective or if our
independent registered public accounting firm is not able to
attest that our internal control over financial reporting is
effective, we may be subject to regulatory scrutiny or a loss of
public confidence, and the value of our common stock might
decrease.
We are
subject to various statutes and regulations that may limit our
ability to take certain actions.
We operate in a highly regulated industry and are subject to
examination, supervision, and comprehensive regulation by
various regulatory agencies. Our compliance with these
regulations is costly and restricts certain of our activities,
including payment of dividends, mergers and acquisitions,
investments, loans and interest rates charged, interest rates
paid on deposits and locations of offices. We are also subject
to capitalization guidelines established by our regulators,
which require us to maintain adequate capital to support our
growth.
The laws and regulations applicable to the banking industry
could change at any time, and we cannot predict the effects of
these changes on our business and profitability. Because
government regulation greatly affects the business and financial
results of all commercial banks and bank holding companies, our
cost of compliance could adversely affect our ability to operate
profitably.
8
FORWARD-LOOKING
STATEMENTS
We may from time to time make written or oral statements,
including statements contained in this report which may
constitute forward-looking statements within the meaning of
Section 21E of the Securities Exchange Act of 1934 (the
“Exchange Act”). The words “expect”,
“anticipate”, “intend”,
“consider”, “plan”, “believe”,
“seek”, “should”, “estimate”, and
similar expressions are intended to identify such
forward-looking statements, but other statements may constitute
forward-looking statements. These statements should be
considered subject to various risks and uncertainties. Such
forward-looking statements are made based upon management’s
belief as well as assumptions made by, and information currently
available to, management pursuant to “safe harbor”
provisions of the Private Securities Litigation Reform Act of
1995. Pinnacle Financial’s actual results may differ
materially from the results anticipated in forward-looking
statements due to a variety of factors. Such factors include,
without limitation those described above under “Risk
Factors,”; those described in any Annual Report on
Form 10-K
or Quarterly Report on
Form 10-Q
that we file after the date hereof; and (i) unanticipated
deterioration in the financial condition of borrowers resulting
in significant increases in loan losses and provisions for those
losses, (ii) increased competition with other financial
institutions, (iii) lack of sustained growth in the economy
in the Nashville and Knoxville, Tennessee areas, (iv) rapid
fluctuations or unanticipated changes in interest rates,
(v) the inability of our bank subsidiary, Pinnacle National
Bank, to satisfy regulatory requirements for its expansion
plans, and (vi) changes in state or federal legislation or
regulations applicable to financial service providers, including
banks. Many of such factors are beyond the our ability to
control or predict, and readers are cautioned not to put undue
reliance on such forward-looking statements. Pinnacle Financial
does not intend to update or reissue any forward-looking
statements contained in this report as a result of new
information or other circumstances that may become known to
Pinnacle Financial.
USE OF
PROCEEDS
We will not receive any proceeds from the sale of shares of our
common stock by the selling shareholders.
The selling shareholders will pay any underwriting discounts and
commissions and expenses incurred by the selling shareholders
for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling shareholders in disposing of
the shares. We will bear all other costs, fees and expenses
incurred in effecting the registration of the shares covered by
this prospectus, including, without limitation, all registration
and filing fees, NASDAQ listing fees and fees and expenses of
our counsel and our accountants.
SELLING
SHAREHOLDERS
The shares of common stock covered by this prospectus include
1,000,000 shares of Pinnacle Financial common stock, par
value $1.00 per share, that we issued to certain selling
shareholders in a private placement completed on July 22,
2008.
The table below sets forth, to our knowledge, information about
the selling shareholders as of July 22, 2008, 2008. As of
July 22, 2008, there were 23,589,542 shares of our
common stock outstanding.
We do not know when or in what amounts the selling shareholders
may offer shares for sale. The selling shareholders may sell any
or all of the shares offered by this prospectus. Because the
selling shareholders may offer all or some of the shares
pursuant to this offering, and because there are currently no
agreements, arrangements or understandings with respect to the
sale of any of the shares, we cannot estimate the number of
shares that will be held by the selling shareholders after
completion of this offering. For purposes of this table,
however, we have assumed that, after completion of this
offering, none of the shares covered by this prospectus will be
held by the selling shareholders.
Beneficial ownership is determined in accordance with the rules
of the Securities and Exchange Commission, which we refer to in
this prospectus as the Commission, and includes voting or
investment power with respect to shares. Unless otherwise
indicated below, to our knowledge, all persons named in the
9
table have sole voting and investment power with respect to the
shares of common stock beneficially owned by them. The inclusion
of any shares in this table does not constitute an admission of
beneficial ownership for the person named below.
Each of the selling shareholders has represented to us that it
purchased the securities to be resold pursuant to this
prospectus in the ordinary course of business and that, at the
time of the purchase, it had no agreements or understandings,
directly or indirectly, with any person to distribute the
securities covered by this prospectus.
|
Shares of Common Stock |
Number of |
Shares of Common Stock to |
||||||||||||||||||
|
Beneficially Owned |
Shares of |
be Beneficially Owned |
||||||||||||||||||
| Prior to Offering |
Common Stock |
after the Offering | ||||||||||||||||||
|
Name of Selling Shareholder
|
Number | Percentage | Being Offered | Number | Percentage | |||||||||||||||
|
T. Rowe Price Small-Cap Stock
Fund, Inc.(1) |
1,323,400 | 5.6 | % | 310,200 | 1,013,200 | 4.3 | % | |||||||||||||
|
T. Rowe Price Institutional Small-Cap Stock Fund(1)
|
94,800 | * | 20,300 | 74,500 | * | |||||||||||||||
|
T. Rowe Price New Horizons
Fund, Inc.(1) |
600,000 | 2.5 | % | 600,000 | — | — | ||||||||||||||
|
T. Rowe Price New Horizons Trust(1)
|
16,800 | * | 16,800 | — | — | |||||||||||||||
|
T. Rowe Price U.S. Equities Trust(1)
|
1,700 | * | 900 | 800 | * | |||||||||||||||
|
City of New York Deferred Compensation Plan — NYC
457\401K Small Cap Account(1)
|
16,800 | * | 16,800 | — | — | |||||||||||||||
|
T. Rowe Price Financial Services
Fund, Inc.(1) |
35,000 | * | 35,000 | — | — | |||||||||||||||
| (1) | T. Rowe Price Associates, Inc. serves as investment adviser with power to direct investments and/or sole power to vote the shares owned by the funds listed in this table as well as shares owned by certain other individuals and institutional investors. For purposes of reporting requirements of the Securities Exchange Act of 1934, T. Rowe Price Associates, Inc. may be deemed to be the beneficial owner of all of the shares listed above; however, T. Rowe Price Associates, Inc. expressly disclaims that it is, in fact the beneficial owner of such securities. T. Rowe Price Associates, Inc. is the wholly owned subsidiary of T. Rowe Price Group, Inc., which is a publicly traded financial services holding company. |
PLAN OF
DISTRIBUTION
The shares covered by this prospectus may be offered and sold
from time to time by the selling shareholders. The term
“selling shareholders” includes those persons and
entities listed on page 10 of this prospectus and certain
permitted transferees to whom such persons and entities may
transfer the shares, including (i) transferees who are
investment advisory clients, affiliates, subsidiaries or parent
companies, family members or family trust for the benefit of
such persons or entities, (ii) transferees who share a
common discretionary investment advisor with such persons or
entities, or (iii) transferees who are partners or members
of such persons or entities, as the case may be, who agree to
act through a single representative. The selling shareholders
will act independently of us in making decisions with respect to
the timing, manner and size of each sale. Such sales may be made
on one or more exchanges or in the
over-the-counter
market or otherwise, at prices and under terms then prevailing
or at prices related to the then current market price or in
negotiated transactions. The selling shareholders may sell their
shares by one or more of, or a combination of, the following
methods:
| • | purchases by a broker-dealer as principal and resale by such broker-dealer for its own account pursuant to this prospectus; | |
| • | ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
10
| • | block trades in which the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; | |
| • | an over-the-counter distribution in accordance with the rules of the NASDAQ Global Select Market; | |
| • | sales in other ways not involving market makers or established trading markets, including privately-negotiated direct sales to purchasers in privately negotiated transactions; | |
| • | in options transactions; and | |
| • | any other legal method. |
In addition, any shares that qualify for sale pursuant to
Rule 144 may be sold under Rule 144 rather than
pursuant to this prospectus.
If the selling shareholders effect such transactions by selling
shares of our common stock to or through underwriters,
broker-dealers or agents, those underwriters, broker-dealers or
agents may receive commissions in the form of discounts,
concessions or commissions from the selling shareholders or
commissions from purchasers of the shares of common stock for
whom they may act as agent or to whom the may sell as principal
(which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved).
In connection with distributions of the shares or otherwise, the
selling shareholders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection
with such transactions, broker-dealers or other financial
institutions may engage in short sales of the common stock in
the course of hedging the positions they assume with selling
shareholders. The selling shareholders may also sell the common
stock short and redeliver the shares to close out such short
positions. The selling shareholders may also enter into option
or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or
other financial institution of shares offered by this
prospectus, which shares such broker-dealer or other financial
institution may resell pursuant to this prospectus (as
supplemented or amended to reflect such transaction). The
selling shareholders may also pledge shares to a broker-dealer
or other financial institution, and, upon a default, such
broker-dealer or other financial institution, may effect sales
of the pledged shares pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
In effecting sales, broker-dealers or agents engaged by the
selling shareholders may arrange for other
broker-dealers
to participate. Broker-dealers or agents may receive
commissions, discounts or concessions from the selling
shareholders in amounts to be negotiated immediately prior to
the sale.
In offering the shares covered by this prospectus, the selling
shareholders and any broker-dealers who execute sales for the
selling shareholders may be deemed to be
“underwriters” within the meaning of
Section 2(11) of the Securities Act in connection with such
sales. Any profits realized by the selling shareholders and the
compensation of any broker-dealer may be deemed to be
underwriting discounts and commissions. Selling shareholders and
broker-dealers who execute sales for selling shareholders who
are “underwriters” within the meaning of
Section 2(11) of the Securities Act will be subject to the
prospectus delivery requirements of the Securities Act.
In order to comply with the securities laws of some states, if
applicable, the shares must be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition,
some states may restrict the selling shareholders from selling
their shares unless they have been registered or qualified for
sale in the applicable state or an exemption from the
registration or qualification requirement is available and is
complied with.
We have advised the selling shareholders that the
anti-manipulation rules of Regulation M under the Exchange
Act may apply to sales of shares in the market and to the
activities of the selling shareholders and their affiliates. In
addition, we will make copies of this prospectus available to
the selling shareholders for the purpose of satisfying the
prospectus delivery requirements of the Securities Act. The
selling shareholders may
11
indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth
the number of shares being offered and the terms of the
offering, including the name of any underwriter, dealer or
agent, the purchase price paid by any underwriter, any discount,
commission and other item constituting compensation, any
discount, commission or concession allowed or reallowed or paid
to any dealer, and the proposed selling price to the public.
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution.
We have agreed to indemnify the selling shareholders against
certain liabilities, including certain liabilities under the
Securities Act.
We have agreed with the selling shareholders to keep the
Registration Statement of which this prospectus constitutes a
part effective until the earlier of (i) the date on which
all shares covered by this prospectus have been sold or shall
have otherwise ceased to be covered by this prospectus and
(ii) the date on which all remaining shares covered by this
prospectus may be sold pursuant to Rule 144(c)(1) and
otherwise without restriction or limitation pursuant to
Rule 144 (or any successor thereto) under the Securities
Act, after taking into account any holders’ possible status
as an “affiliate” of ours as determined by our counsel
pursuant to a written opinion letter addressed to our transfer
agent to such effect (provided at least 12 months have
lapsed since shares covered by this prospectus were acquired
from us as calculated in accordance with Rule 144).
Once sold under the shelf registration statement for which this
prospectus is a part, the shares of common stock will be freely
tradable in the hands of persons other than our affiliates.
Our common stock, including the shares offered by this
prospectus, is traded on the NASDAQ Global Select Market under
the symbol “PNFP.”
EXPERTS
The consolidated financial statements incorporated into this
prospectus by reference from Pinnacle Financial’s Annual
Report on
Form 10-K
for the year ended December 31, 2007 and Pinnacle
Financial’s internal control over financial reporting as of
December 31, 2007 have been audited by KPMG LLP, an
independent registered public accounting firm, as stated in
their reports. Such reports are incorporated herein by reference
in reliance upon such reports given authority of such firm as
experts in accounting and auditing.
LEGAL
MATTERS
The validity of the shares of our common stock being offered by
the selling shareholders in this offering will be passed upon by
Bass, Berry & Sims PLC, Nashville, Tennessee.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the Commission a registration statement on
Form S-3
under the Securities Act of 1933, as amended (the
“Securities Act”) for the common stock being offered
under this prospectus. This prospectus, which is part of the
registration statement, does not contain all of the information
set forth in the registration statement and accompanying
exhibits. This prospectus contains descriptions of certain
agreements or documents that are exhibits to the registration
statement. The statements as to the contents of such exhibits,
however, are brief descriptions and are not necessarily
complete, and each statement is qualified in all respects by
reference to such agreement or document. In addition, we file
annual, quarterly and other reports, proxy statements and other
information with the Commission. Our current Commission filings
and the registration statement and accompanying exhibits may be
inspected without charge at the public reference facilities of
the Commission located at 100 F Street, N. E.,
Washington, D.C. 20549. You may obtain copies of this
information at prescribed rates. The Commission also maintains a
website that contains reports, proxy
12
statements, registration statements and other information. The
Commission website address is www.sec.gov. You may call the
Commission at
1-800-SEC-0330
to obtain further information on the operations of the public
reference room.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
We have elected to “incorporate by reference” certain
information into this prospectus. By incorporating by reference,
we can disclose important information to you by referring you to
another document we have filed separately with the Commission.
The information incorporated by reference is deemed to be part
of this prospectus, except for information incorporated by
reference that is superseded by information contained in this
prospectus or any document we subsequently file with the
Commission that is incorporated or deemed to be incorporated by
reference into this prospectus. Likewise, any statement in this
prospectus or any document which is incorporated or deemed to be
incorporated by reference herein will be deemed to have been
modified or superseded to the extent that any statement
contained in any document that we subsequently file with the
Commission that is incorporated or deemed to be incorporated by
reference herein modifies or supersedes that statement. This
prospectus incorporates by reference the documents listed below
and any future filings we make with the Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, after the date of this prospectus and
prior to the sale of all the shares covered by this prospectus.
| • | Our Annual Report on Form 10-K for the fiscal year ended December 31, 2007; | |
| • | Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2008 and June 30, 2008; | |
| • | Our Current Reports on Form 8-K dated January 18, 2008, January 25, 2008, January 25, 2008, February 5, 2008, March 5, 2008, April 15, 2008, July 16, 2008, July 18, 2008 and August 5, 2008. | |
| • | The description of our common stock, par value $1.00 per share, contained in our Registration Statement on Form 8-A filed with the Commission and dated August 3, 2000, including all amendments and reports filed for purposes of updating such description. |
Notwithstanding the foregoing, information furnished under
Items 2.02 and 7.01 of any Current Report on
Form 8-K,
including the related exhibits, is not incorporated by reference
in this prospectus.
You may request a copy of these documents, which will be
provided to you at no cost, by writing or telephoning us using
the following contact information:
Pinnacle Financial Partners, Inc.
The Commerce Center
211 Commerce Street, Suite 300
Nashville, Tennessee 37201
Attention: Investor Relations
Telephone:
(615) 744-3700
13
1,000,000 SHARES
PINNACLE FINANCIAL PARTNERS,
INC.
COMMON STOCK
The date of this prospectus is August , 2008
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following table sets forth the various expenses to be
incurred in connection with the sale and distribution of the
securities being registered hereby, all of which will be borne
by Pinnacle Financial (except any underwriting discounts and
commissions and expenses incurred by the selling shareholders
for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling shareholders in disposing of
the shares). All amounts shown are estimates except the
Securities and Exchange Commission registration fee:
|
Securities and Exchange Commission Fee
|
$ | 973 | ||
|
*Legal Fees and Expenses
|
$ | 10,000 | ||
|
*Accounting Fees and Expenses
|
$ | 5,000 | ||
|
*Miscellaneous
|
$ | 2,500 | ||
|
*Total
|
$ | 18,473 | ||
| * | Estimated. |
| Item 15. | Indemnification of Directors and Officers. |
The Tennessee Business Corporation Act, or TBCA, provides that a
corporation may indemnify any of its directors and officers
against liability incurred in connection with a proceeding if:
(a) such person acted in good faith; (b) in the case
of conduct in an official capacity with the corporation, he
reasonably believed such conduct was in the corporation’s
best interests; (c) in all other cases, he reasonably
believed that his conduct was at least not opposed to the best
interests of the corporation; and (d) in connection with
any criminal proceeding, such person had no reasonable cause to
believe his conduct was unlawful. In actions brought by or in
the right of the corporation, however, the TBCA provides that no
indemnification may be made if the director or officer was
adjudged to be liable to the corporation. The TBCA also provides
that in connection with any proceeding charging improper
personal benefit to an officer or director, no indemnification
may be made if such officer or director is adjudged liable on
the basis that such personal benefit was improperly received. In
cases where the director or officer is wholly successful, on the
merits or otherwise, in the defense of any proceeding instigated
because of his or her status as a director or officer of a
corporation, the TBCA mandates that the corporation indemnify
the director or officer against reasonable expenses incurred in
the proceeding. The TBCA provides that a court of competent
jurisdiction, unless the corporation’s charter provides
otherwise, upon application, may order that an officer or
director be indemnified for reasonable expenses if, in
consideration of all relevant circumstances, the court
determines that such individual is fairly and reasonably
entitled to indemnification, notwithstanding the fact that
(a) such officer or director was adjudged liable to the
corporation in a proceeding by or in the right of the
corporation; (b) such officer or director was adjudged
liable on the basis that personal benefit was improperly
received by him; or (c) such officer or director breached
his duty of care to the corporation.
Our charter provides that we will indemnify our directors and
officers to the maximum extent permitted by the TBCA. Our bylaws
provide that our directors and officers shall be indemnified
against expenses that they actually and reasonably incur if they
are successful on the merits of a claim or proceeding. In
addition, the bylaws provide that we will advance to our
directors and officers reasonable expenses of any claim or
proceeding so long as the director or officer furnishes us with
(1) a written affirmation of his or her good faith belief
that he or she has met the applicable standard of conduct and
(2) a written statement that he or she will repay any
advances if it is ultimately determined that he or she is not
entitled to indemnification.
When a case or dispute is settled or otherwise not ultimately
determined on its merits, the indemnification provisions provide
that we will indemnify our directors and officers when they meet
the applicable standard of conduct. The applicable standard of
conduct is met if the directors or officer acted in a manner he
or she in good faith believed to be in or not opposed to our
best interests and, in the case of a
II-1
criminal action or proceeding, if the insider had no reasonable
cause to believe his or her conduct was unlawful. Our board of
directors, shareholders or independent legal counsel determines
whether the director or officer has met the applicable standard
of conduct in each specific case.
Our charter and bylaws also provide that the indemnification
rights contained therein do not exclude other indemnification
rights to which a director or officer may be entitled under any
bylaw, resolution or agreement, either specifically or in
general terms approved by the affirmative vote of the holders of
a majority of the shares entitled to vote. We can also provide
for greater indemnification than is provided for in the bylaws
if we choose to do so, subject to approval by our shareholders
and the limitations provided in our charter as discussed in the
subsequent paragraph.
Our charter eliminates, with exceptions, the potential personal
liability of a director for monetary damages to us and our
shareholders for breach of a duty as a director. There is,
however, no elimination of liability for:
| • | a breach of the director’s duty of loyalty to us or our shareholders; | |
| • | an act or omission not in good faith or which involves intentional misconduct or a knowing violation of law; or | |
| • | any payment of a dividend or approval of a stock repurchase that is illegal under the TBCA. |
Our charter does not eliminate or limit our right or the right
of our shareholders to seek injunctive or other equitable relief
not involving monetary damages.
The indemnification provisions of the bylaws specifically
provide that we may purchase and maintain insurance on behalf of
any director or officer against any liability asserted against
and incurred by him or her in his or her capacity as a director,
officer, employee or agent whether or not we would have had the
power to indemnify against such liability.
| Item 16. | Exhibits. |
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 4 | .1 | Amended and Restated Charter of Pinnacle Financial Partners, Inc.(1) | ||
| 4 | .2 | Bylaws of Pinnacle Financial Partners, Inc.(2) | ||
| 4 | .3 | Registration Rights Agreement by and among Pinnacle Financial Partners, Inc. and the persons listed on the signature page thereto(3) | ||
| 4 | .4 | Specimen of Common Stock Certificate(4) | ||
| 5 | .1 | Opinion of Bass, Berry & Sims PLC* | ||
| 23 | .1 | Consent of KPMG LLP | ||
| 23 | .2 | Consent of Bass, Berry & Sims PLC, included in Exhibit 5.1 filed herewith.* | ||
| 24 | .1 | Power of Attorney* | ||
| * | Filed previously. |
| (1) | Registrant hereby incorporates by reference to Registrant’s Form 10-Q for the quarter ended March 31, 2005. | |
| (2) | Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K filed on September 21, 2007. | |
| (3) | Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K filed on July 18, 2008. | |
| (4) | Registrant hereby incorporates be reference to Registrant’s Registration Statement on Form SB-2, as amended (File No. 333-38018) |
II-2
| Item 17. | Undertakings. |
Item 512(a) of
Regulation S-K. The
undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i), (ii) and
(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) of the Securities Act of 1933, as amended that
is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining liability under the
Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5) or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
Item 512(b) of
Regulation S-K. That,
for the purpose of determining any liability under the
Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new
registration statement relating to the securities offered
II-3
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Item 512(h) of
Regulation S-K. Insofar
as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3 and has duly caused this Pre-Effective Amendment
No. 1 to Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of
Nashville, State of Tennessee, on August 18, 2008.
PINNACLE FINANCIAL PARTNERS, INC.
| By: |
/s/ M.
Terry Turner
|
M. Terry Turner
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Pre-Effective Amendment No. 1 to Registration Statement has
been signed by the following persons in the capacities and on
the dates indicated.
|
Signature
|
Title
|
Date
|
||||
|
* Robert A. McCabe, Jr. |
Chairman and Director | August 18, 2008 | ||||
|
/s/ M.
Terry Turner M. Terry Turner |
President, Chief Executive Officer and Director (Principal Executive Officer) | August 18, 2008 | ||||
|
/s/ Harold
R. Carpenter Harold R. Carpenter |
Chief Financial Officer (Principal Financial and Accounting Officer) | August 18, 2008 | ||||
|
* Sue G. Atkinson |
Director | August 18, 2008 | ||||
|
H. Gordon Bone |
Director | August , 2008 | ||||
|
Gregory L. Burns |
Director | August , 2008 | ||||
|
* James C. Cope |
Director | August 8, 2008 | ||||
|
Colleen Conway-Welch |
Director | August , 2008 | ||||
|
* Clay T. Jackson |
Director | August 18, 2008 | ||||
|
* William Huddleston |
Director | August 18, 2008 | ||||
II-5
|
Signature
|
Title
|
Date
|
||||
|
* Ed C. Loughry, Jr. |
Director | August 18, 2008 | ||||
|
* David Major |
Director | August 18, 2008 | ||||
|
* Hal N. Pennington |
Director | August 18, 2008 | ||||
|
* Dale W. Polley |
Director | August 18, 2008 | ||||
|
* Wayne J. Riley |
Director | August 18, 2008 | ||||
|
* Gary Scott |
Director | August 18, 2008 | ||||
|
James L. Shaub, II |
Director | August , 2008 | ||||
|
Reese L. Smith, III |
Director | August , 2008 | ||||
|
*
/s/ Harold
R. Carpenter Harold R. CarpenterAttorney-in-fact |
||||||
II-6
EXHIBIT INDEX
|
Exhibit |
||||
|
Number
|
Description
|
|||
| 4 | .1 | Amended and Restated Charter of Pinnacle Financial Partners, Inc.(1) | ||
| 4 | .2 | Bylaws of Pinnacle Financial Partners, Inc.(2) | ||
| 4 | .3 | Registration Rights Agreement by and among Pinnacle Financial Partners, Inc. and the persons listed on the signature page thereto(3) | ||
| 4 | .4 | Specimen of Common Stock Certificate(4) | ||
| 5 | .1 | Opinion of Bass, Berry & Sims PLC* | ||
| 23 | .1 | Consent of KPMG LLP | ||
| 23 | .2 | Consent of Bass, Berry & Sims PLC, included in Exhibit 5.1 filed herewith.* | ||
| 24 | .1 | Power of Attorney* | ||
| * | Filed previously. |
| (1) | Registrant hereby incorporates by reference to Registrant’s Form 10-Q for the quarter ended March 31, 2005. | |
| (2) | Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K filed on September 21, 2007. | |
| (3) | Registrant hereby incorporates by reference to Registrant’s Current Report on Form 8-K filed on July 18, 2008. | |
| (4) | Registrant hereby incorporates be reference to Registrant’s Registration Statement on Form SB-2, as amended (File No. 333-38018) |